Los Angeles Employment Law: Weaver v. Ormco

Lisa Weaver sued her former employer Ormco Corporation, ¹ for hostile workplace sexual harassment. Her complaint included several tort causes of [*2] action, including under the California Fair Employment and Housing Act (FEHA) for sexual discrimination and harassment (Gov. Code, § 12940, subd. (j)) ² and failure to prevent sexual discrimination and harassment from occurring (§ 12940, subd. (k)). Following a trial, the jury returned a verdict finding in Ormco's favor on all but the failure to prevent cause of action on which it awarded Weaver $20,000 in damages.The court subsequently awarded Weaver $63,652 in costs and $596,400 in attorney fees.

III FAILURE [*17] TO PREVENT SEXUAL HARASSMENT CLAIM Ormco contends the verdict in favor of Weaver on her failure to prevent sexual harassment cause of action must be reversed because Weaver failed to prove she suffered sexual harassment within the meaning of the FEHA. Ormco couches its analysis in two arguments: (1) the jury instruction on the failure to prevent claim was defective because it did not instruct the jury Weaver had to suffer actionable harassment as a prerequisite to her recovery on her failure to prevent harassment claim; and (2) the trial court should have granted its motion for JNOV on the failure to prevent cause of action because the jury found against Weaver on her cause of action for harassment. Both of Ormco's arguments are premised upon the same fundamental legal issue: Is proof of actionable sexual harassment under the FEHA a prerequisite to Weaver prevailing on a cause of action against her employer under section 12940, subdivision (k), for the employer's failure to prevent sexual harassment? We conclude it is. A. The Statutory Scheme: Elements of a Failure to Prevent Cause of Action We begin with the statutory scheme of the FEHA as it pertains to sexual harassment. [*18] Two different employer obligations are implicated here: the duty to not sexually harass an employee and the duty to take reasonable steps to prevent workplace harassment from occurring. 1. Sexual Harassment Section 12940 of the FEHA describes a variety of unfair employment practices including discrimination on the basis of sex. (§ 12940, subd. (a).) "[T]he FEHA expressly and separately prohibits workplace harassment based on sex." (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1039.) Section 12940, subdivision (j)(1), specifically provides it is unlawful for "an employer . . . because of . . . sex . . . to harass an employee . . . . Harassment of an employee . . . by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. . . . An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment." "Sexual harassment can consist of verbal communications, such as asking for [*19] a date, telling sexual jokes, bragging about sexual exploits, making comments regarding appearance or anatomy, or using terms with double meanings (one of which is sexual). However, nonverbal actions can also constitute unlawful harassment, such as touching oneself or another (particularly in sexually sensitive places), suggestive eye contact, or posting or circulating sexually oriented posters, cartoons, or pictures. [Citations.]" (2 Advising Cal. Employers and Employees (Cont.Ed.Bar 2007) § 15.90, p. 1332; see Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(1).) California courts apply the federal threshold standard applicable to harassment claims under Title VII of the federal Civil Rights Act (42 U.S.C. § 2000e'2(a)(1)), to claims of sexual harassment under the FEHA. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 462'464.) It is not sufficient that there simply be some offensive conduct; to be actionable the harassing conduct must either constitute "quid pro quo" harassment (where employment is conditioned upon submission to unwelcome sexual advances) or, the theory pursued in this case, result in [*20] a hostile work environment (where the work environment is hostile or abusive on the basis of sex). (Ibid.; see also Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516'517 (Beyda).) "[T]o prevail, an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. [Citations.] The working environment must be evaluated in light of the totality of the circumstances: '[W]hether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances.